BILL NUMBER: SB 2160	CHAPTERED  09/14/00

	CHAPTER   450
	FILED WITH SECRETARY OF STATE   SEPTEMBER 14, 2000
	APPROVED BY GOVERNOR   SEPTEMBER 13, 2000
	PASSED THE SENATE   AUGUST 28, 2000
	PASSED THE ASSEMBLY   AUGUST 25, 2000
	AMENDED IN ASSEMBLY   JUNE 27, 2000
	AMENDED IN SENATE   APRIL 25, 2000
	AMENDED IN SENATE   MARCH 30, 2000

INTRODUCED BY   Senator Schiff

                        FEBRUARY 25, 2000

   An act to amend Section 317 of, to repeal Section 326 of, and to
add Section 326.5 to, the Welfare and Institutions Code, relating to
minors.



	LEGISLATIVE COUNSEL'S DIGEST


   SB 2160, Schiff.  Dependent children:  detention hearings.
   Existing law provides for the appointment of counsel to represent
a dependent child of the court in a detention hearing, as specified.
Appointed counsel may be a county counsel, district attorney, public
defender, or other member of the bar.
   This bill would require the appointment of counsel for a child
unrepresented by counsel, unless the court  finds the child would not
benefit from the appointment of counsel.  The bill would delete a
county counsel from the list of eligible counsel, and would require
the court to determine, before appointing counsel, that counsel shall
have a caseload and training that assures adequate representation of
the child.  The bill would also provide that both the child and
counsel for the child, with the informed consent of the child if the
child is found by the court to be of sufficient age and maturity to
so consent, may invoke the psychotherapist-client privilege, the
physician-patient privilege, and the clergyman-penitent privilege.
The bill would also provide that counsel for the child shall have
access to all records with regard to the child maintained by
specified health care providers for certain purposes and delete
existing provisions regarding counsel's access to a child's medical
or child care records.
   Existing law provides for appointment of a guardian ad litem for
children alleged to be victims of abuse or neglect.
   This bill would repeal existing law, operative July 1, 2001, and
require the Judicial Council to adopt a rule of court by July 1,
2001, providing for the appointment of a guardian ad litem, and for
caseload standards for appointed counsel.  The bill would authorize
related rules of court regarding guidelines for appointment of an
attorney rather than a special advocate to represent the child, and
caseload standards for guardians ad litem.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:


  SECTION 1.  Section 317 of the Welfare and Institutions Code is
amended to read:
   317.  (a) When it appears to the court that a parent or guardian
of the child desires counsel but is presently financially unable to
afford and cannot for that reason employ counsel, the court may
appoint counsel as provided in this section.
   (b) When it appears to the court that a parent or guardian of the
child is presently financially unable to afford and cannot for that
reason employ counsel, and the child has been placed in out-of-home
care, or the petitioning agency is recommending that the child be
placed in out-of-home care, the court shall appoint counsel, unless
the court finds that the parent or guardian has made a knowing and
intelligent waiver of counsel as provided in this section.
   (c) Where a child is not represented by counsel, the court shall
appoint counsel for the child unless the court finds that the child
would not benefit from the appointment of counsel.  The court shall
state on the record its reasons for that finding.  A primary
responsibility of any counsel appointed to represent a child pursuant
to this section shall be to advocate for the protection, safety, and
physical and emotional well-being of the child.  Counsel for the
child may be a district attorney, public defender, or other member of
the bar, provided that the counsel does not represent another party
or county agency whose interests conflict with the child's.  The fact
that the district attorney represents the child in a proceeding
pursuant to Section 300 as well as conducts a criminal investigation
or files a criminal complaint or information arising from the same or
reasonably related set of facts as the proceeding pursuant to
Section 300 is not in and of itself a conflict of interest.  The
court may fix the compensation for the services of appointed counsel.
  The appointed counsel shall have a caseload and training that
assures adequate representation of the child.  The Judicial Council
shall promulgate rules of court that establish caseload standards,
training requirements, and guidelines for appointed counsel for
children and shall adopt rules as required by Section 326.5 no later
than July 1, 2001.
   (d) The counsel appointed by the court shall represent the parent,
guardian, or child at the detention hearing and at all subsequent
proceedings before the juvenile court.  Counsel shall continue to
represent the parent or child unless relieved by the court upon the
substitution of other counsel or for cause.  The representation shall
include representing the parent or the child in termination
proceedings and in those proceedings relating to the institution or
setting aside of a legal guardianship.
   (e) The counsel for the child shall be charged in general with the
representation of the child's interests.  To that end, the counsel
shall make or cause to have made any further investigations that he
or she deems in good faith to be reasonably necessary to ascertain
the facts, including the interviewing of witnesses, and he or she
shall examine and cross-examine witnesses in both the adjudicatory
and dispositional hearings.  He or she may also introduce and examine
his or her own witnesses, make recommendations to the court
concerning the child's welfare, and participate further in the
proceedings to the degree necessary to adequately represent the
child.  In any case in which the child is four years of age or older,
counsel shall interview the child to determine the child's wishes
and to assess the child's well-being, and shall advise the court of
the child's wishes.  Counsel for the child shall not advocate for the
return of the child if, to the best of his or her knowledge, that
return conflicts with the protection and safety of the child.  In
addition counsel shall investigate the interests of the child beyond
the scope of the juvenile proceeding and report to the court other
interests of the child that may need to be protected by the
institution of other administrative or judicial proceedings.  The
attorney representing a child in a dependency proceeding is not
required to assume the responsibilities of a social worker and is not
expected to provide nonlegal services to the child.  The court shall
take whatever appropriate action is necessary to fully protect the
interests of the child.
   (f) Either the child or the counsel for the child, with the
informed consent of the child if the child is found by the court to
be of sufficient age and maturity to so consent, may invoke the
psychotherapist-client privilege, physician-patient privilege, and
clergyman-penitent privilege; and if the child invokes the privilege,
counsel may not waive it, but if counsel invokes the privilege, the
child may waive it.  Counsel shall be holder of these privileges if
the child is found by the court not to be of sufficient age and
maturity to so consent.  For the sole purpose of fulfilling his or
her obligation to provide legal representation of the child, counsel
for a child shall have access to all records with regard to the child
maintained by a health care facility, as defined in Section 1545 of
the Penal Code, health care providers, as defined in Section 6146 of
the Business and Professions Code, a physician and surgeon or other
health practitioner as defined in Section 11165.8 of the Penal Code
or a child care custodian, as defined in Section 11165.7 of the Penal
Code.  Notwithstanding any other law, counsel shall be given access
to all records relevant to the case which are maintained by state or
local public agencies.  All information requested from a child
protective agency regarding a child who is in protective custody, or
from a child's guardian ad litem, shall be provided to the child's
counsel within 30 days of the request.
   (g) In a county of the third class, if counsel is to be provided
to a child at county expense other than by counsel for the agency,
the court shall first utilize the services of the public defender
prior to appointing private counsel, to provide legal counsel.
Nothing in this subdivision shall be construed to require the
appointment of the public defender in any case in which the public
defender has a conflict of interest.  In the interest of justice, a
court may depart from that portion of the procedure requiring
appointment of the public defender after making a finding of good
cause and stating the reasons therefor on the record.
   (h) In a county of the third class, if counsel is to be appointed
for a parent or guardian at county expense, the court shall first
utilize the services of the alternate public defender, prior to
appointing private counsel, to provide legal counsel.  Nothing in
this subdivision shall be construed to require the appointment of the
alternate public defender in any case in which the public defender
has a conflict of interest.  In the interest of justice, a court may
depart from that portion of the procedure requiring appointment of
the alternate public defender after making a finding of good cause
and stating the reasons therefor on the record.
  SEC. 2.  Section 326 of the Welfare and Institutions Code is
repealed.
  SEC. 3.  Section 326.5 is added to the Welfare and Institutions
Code, to read:
   326.5.  The Judicial Council shall adopt a rule of court effective
July 1, 2001, that complies with the requirement of the federal
Child Abuse Prevention and Treatment Act (Public Law 93-247) for the
appointment of a guardian ad litem, who may be an attorney or a
court-appointed special advocate, for a child in cases in which a
petition is filed based upon neglect or abuse of the child or in
which a prosecution is initiated under the Penal Code arising from
neglect or abuse of the child.  The rule of court may include
guidelines to the courts for determining when an attorney should be
appointed rather than a court appointed special advocate, and
caseload standards for guardians ad litem.
  SEC. 4.  Section 2 of this act shall become operative on July 1,
2001.
